LONNIE J. HALLAWAY, Employee/Petitioner, v. MORA PLUMBING & HEATING, INC., and FEDERATED MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 5, 2003

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where there is no change in diagnosis, no substantial change in the employee=s ability to work, no substantial change in permanent partial disability and no need for extensive medical care not contemplated at the time of the award, good cause has not been established to set aside the award on stipulation.

 

Petition to vacate award denied.

 

Determined by Stofferahn, J., Wilson, J., and Johnson, C.J.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee has filed a motion to set aside an award on stipulation, alleging that there has been an unanticipated substantial change in his condition which constitutes cause pursuant to Minn. Stat. ' 176.461.  We deny the motion.

 

BACKGROUND

 

On October 28, 1998, while working as a route driver for Mora Plumbing & Heating, Lonnie Hallaway sustained an injury to his low back.  The employer and its insurer, Federated Mutual Insurance Company, admitted primary liability for the injury. 

 

The parties entered into a stipulation for settlement which was the subject of an award on stipulation, served and filed November 15, 1999.  The parties agreed in the stipulation that the employee was being paid temporary total disability from March 15, 1999, that the employee had reached maximum medical improvement as of September 22, 1999, and that the employee had received an advance from the insurer from his permanent partial disability which had been rated at 7 percent.  The stipulation provided that temporary total disability would cease on the issuance of the award or 90 days after maximum medical improvement, whichever was earlier, and that the insurer would then pay $10,000.00 less the advance of permanent partial disability benefits.  In return, the employee waived all workers= compensation benefits for his work injury, with the exception of some future medical benefits. 

 

According to medical records attached to the stipulation, the employee treated in 1999 for his work injury with Dr. Suzanne Proudfoot at Fairview Spine Care and Rehabilitation Clinic.  In her office notes of June 15, 1999, Dr. Proudfoot took a history of low back pain and numbness in the right leg.  The employee had an MRI in February 1999 which showed degenerative changes from T10 to S1 and also demonstrated foraminal structure which was suggestive of lateral disc herniation.  The employee=s pain was aggravated by bending, sitting, lifting, walking and driving.  The physical and neurological exams were normal except for some decreased lumbar lordosis.  Dr. Proudfoot assessed chronic back pain secondary to degenerative disc disease, lower extremity numbness with unclear etiology, depression and sleep disturbance.  The doctor recommended entry into the pain management program.

 

A chart note of September 17, 1999 from Dr. Proudfoot contained a history of L5-S1 lateral disc herniation.  The employee was also found to be at maximum medical improvement and given a permanent partial disability rating of 7 percent pursuant to Minn. R. 5223.0390, subp. 3.C.(1).[1]  A Functional Capacity Evaluation done at Fairview on September 14, 1999, indicated the employee had an ability to lift up to 25.8 pounds and a tolerance for sitting up to 62 minutes and standing up to 32 minutes.  In a rehabilitation report of September 21, 1999, the employee=s QRC noted that the employee was not working because his employer was not able to accommodate his restrictions.  Job search consistent with the FCE was planned by the QRC. 

 

On March 17, 2003, the employee filed a motion to set aside the award on stipulation,  alleging a substantial change in medical condition which was not anticipated at the time of the award.  The motion included an affidavit from the employee that he had gone to work as a cashier at Grand Casino after the settlement but that he had stopped working in June 2002 and was now permanently and totally disabled.

 

Attached to the motion were records from Mora Medical Center which indicate that on September 29, 2000, the employee consulted with Dr. Terry A. Johnson, in part because he was continuing to have a lot of back pain.  The employee was working at the casino and his range of motion on examination was Apretty good.@  Dr. Johnson continued the employee=s Vicodin prescription and considered referring him to a Aback pain specialist.@

 

On October 20, 2000, the employee saw Dr. Maria Zorawska from the Institute for Low Back and Neck Care.  The employee=s chief complaint was low back pain with some numbness in the lateral aspect of the right thigh.  Dr. Zorawska found some limitation of range of motion in the lumbar spine but no other positive findings on exam.  Her impression was chronic low back pain due to arthritis in the facet joints and some numbness in the right thigh of uncertain etiology.  Dr. Zorawska recommended a review of the MRI to rule out impingement of the nerve roots as a cause of the right leg numbness.  She also recommended facet joint injection at L4-5 and L5-S1.

The MRI was reviewed by Dr. Zorawska on November 7, 2000, and in her chart note she indicated that she saw no reason for the right lower extremity numbness.  An EMG done on November 20, 2000, was normal.  While the employee treated at Mora Medical Center thereafter for nonwork-related conditions, he did not treat for back pain again until October 19, 2001, other than having his Vicodin prescription renewed.  The employee was seen by Dr. Mark Hruby at Mora Medical Center on October 19, 2001, with a complaint of chronic back pain.  Pain medication was prescribed.  Dr. Hruby commented that the employee Adid not appear to be in any profound distress at this point.@ No findings on exam were noted.

 

The employee saw Dr. Zorawska again on December 7, 2001, and told her that he had been advised by the Mora Medical Center that he would have to get pain medication from her.  The employee complained of constant low back pain and some numbness in the lateral aspect of the calf.  Pain was aggravated by standing and lying down.  Dr. Zorawska found Asignificantly@ limited range of motion of the lumbar spine.  The remainder of the examination was normal.  Dr. Zorawska expressed to the employee her concern that he was using a narcotic for pain relief which should only be used for acute pain.  An MRI was recommended, which would be compared to the MRI done in 1999.  Dr. Zorawska completed a report of work ability releasing the employee to light work on a full-time basis. 

 

The MRI was done on December 11, 2001.  It showed mild to moderate degenerative changes in the lumbar spine, no canal or foraminal stenosis and no nerve root impingement.  No significant change from the MRI of February 12, 1999, was noted.  After review of the MRI, Dr. Zorawska recommended physical therapy, Extra Strength Excedrin for pain, and a follow-up appointment in four weeks. 

 

The employee did not treat with Dr. Zorawska thereafter.  His records from Mora Medical Center include an appointment on March 1, 2002, for back pain, in which it was noted he would be seeing Dr. James Ogilvie for a second opinion.

 

The employee saw Dr. Ogilvie on May 8, 2002.  The employee reported low back pain with difficulty in lifting, bending, or twisting.  Alternating sitting and standing relieved his symptoms.  He reported his symptoms had slowly worsened with time.  His physical examination was essentially normal except for some discomfort along the L5-S1 paraspinal muscular region.  Dr. Ogilvie=s impression was of multi-level degenerative lumbar spondylosis with multi-level degenerative disc disease.  Treatment options were discussed with the employee and a lumbar discography was done on May 22, 2002.  The results of the discogram were nonconcordant pain except at the L2-3 level.  The employee returned to Dr. Ogilvie on June 26, 2002.  Dr. Ogilvie did not believe fusion surgery was an appropriate option for the employee and instead recommended a referral to an Aaggressive and comprehensive pain management facility.@  Dr. Ogilvie also stated that, AConsidering his extended pathology, he is most probably permanently and totally disabled.  Unless a QRC were able to come up with a sedentary job, I cannot recommend any employment options for him.@  In a report of October 28, 2002, Dr. Ogilvie rated the employee as having a 10.5 percent permanent partial disability under Minn. R. 5223.0390, subp. 3.C.(2). for multiple level degenerative changes. 

 

The employer and insurer have objected to the motion to set aside the award on stipulation, arguing that there has not been a substantial change in the employee=s condition since the time of the award and that any change could have been anticipated.

 

DECISION

 

The statute provides that the Workers= Compensation Court of Appeals may set aside an award for cause.  Cause is defined in the statute as including Aa substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.@  Minn. Stat. ' 176.461.  In considering whether a substantial change in condition has occurred, this court has referred to the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).  The Fodness factors are:

 

1.         A change in diagnosis;

2.         A change in the employee=s ability to work;

3.         Additional permanent partial disability;

4.         A necessity for more costly and extensive medical care than initially anticipated;

5.         A causal relationship between the injury covered by the settlement and the worsened condition.

 

When the employee=s case was settled in 1999, the diagnosis of his condition by his treating doctor, Dr. Proudfoot, was of chronic back pain secondary to degenerative disc disease and right lower extremity weakness of unclear etiology.  Her diagnosis was substantiated by an MRI which showed degenerative changes from T10-S1.  In 2001, after the settlement, Dr. Zorawska concluded that there was no significant change in the results of the MRI done in 2001 from the MRI done in 1999.  Dr. Ogilvie=s opinion in 2002 was that the employee had multi-level degenerative lumbar spondylosis with multi-level degenerative disc disease.  We do not find a change in diagnosis.

 

The employee argues that there has been a substantial change in his ability to work since he was able to be employed at the time of the settlement and he is now permanently and totally disabled.  The FCE done in September 1999 indicated that the employee was able to work on a full-time basis with limitations, including a limitation of lifting no more than 25.8 pounds.  No FCE has been performed since the award, but Dr. Zorawska in 2000 allowed the employee to work full-time at a light level, which was defined on the form as work which does not require lifting over 20 pounds.  Dr. Ogilvie opines that given the employee=s Aextended pathology,@ a phrase not defined by the doctor, the employee is probably permanently and totally disabled.  

 

The employee went to work in February 2000 as a cashier at Grand Casino, selling pull tabs at a booth.  The job was within the physical restrictions set out in the FCE since it required no lifting over eight pounds.  The employee stopped working at this job in June 2002.  There is no evidence that the employee left his job on medical advice and no evidence that the job was considered physically inappropriate by any doctor.  Given the lack of substantial change in the employee=s complaints, the lack of change in diagnosis, and the similar findings on examination, we conclude that the employee has not demonstrated a substantial change in his ability to work.

 

The employee further contends that there has been an increase in permanent partial disability which demonstrates a worsening in his condition.  In 1999, Dr. Proudfoot rated the employee as having a seven percent permanent partial disability under Minn. R. 5223.0390, subp. 3.c.(1).  In 2002, Dr. Ogilvie rated the employee as having a 10.5 percent permanent partial disability under Minn. R. 5223.0390, subp. 3.c.(2).  While it appears that the employee=s permanent partial disability may have increased, we do not conclude that this increase is evidence of a substantial change in medical condition.

 

The fourth factor in Fodness is the necessity for more costly medical care and treatment.  We have said this factor is of limited utility where medical expenses are left open in a settlement as they were in the present case.  Burke v. F&M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).  For purposes of considering whether a substantial change in the employee=s condition has occurred, it is noted that Dr. Proudfoot=s recommendation for treatment in 1999 before the settlement was for a pain management program, and Dr. Ogilvie=s recommendation for treatment in 2002 after the settlement was for an aggressive and comprehensive pain management facility.

 

We do not find a substantial change in the employee=s condition which would constitute good cause to set aside the award on stipulation in this case.  The employee=s motion to set aside the award is denied.